LEASE AGREEMENT
THIS LEASE AGREEMENT made this day by and between WILLIAM B. BELLIS, SR.,
whose address is 10691 Brentlinger Lane, Louisville, Kentucky 40291,
hereinafter "Lessor"; and RAPID CAST, INC., a Delaware corporation authorized
to do business in, and in good standing in the Commonwealth of Kentucky,
whose address is: 4510-12 Robards Lane, Louisville, Kentucky 40218,
hereinafter "Lessee";
WITNESSETH: That Lessor hereby leases to Lessee, and Lessee hereby rents from
Lessor, upon the mutual agreements and convenants and subject to the terms
and conditions hereinafter set out, the real estate commonly known as 4610-12
Robards Lane, Louisville, Kentucky 40218, containing approximately 1.3 acres
with improvements thereon, and more particularly described in Exhibit A
annexed hereto, as part hereof.
It is further mutually agreed between the parties as follows:
1. TERM. The term of this lease is a period of five (5) years,
commencing May 31st, 1995 and expiring May 30th, 2000.
2. POSSESSION. Possession shall be delivered to Lessee upon execution
of this lease by both parties. Provided, however, that Lessor reserves the
right of exclusive use of the executive office contained in the leased
premises for a period not to exceed 90 days from the date of execution hereof.
Lessee shall be entitled to a credit against the rent stipulated herein for
the actual number of days during which Lessor occupies the executive office,
calculated on the basis of $8.00 per square foot per year plus Lessor's
prorata share of its utilities. At time of execution of this lease, Lessee
shall pay to Lessor the sum of $8,166.67, being the installment of rent due
May 31st, 1995
3. RENT. Lessee binds itself to pay as fixed rent for the leased
premises the sum of $496,400.00, being at the rate of $98,000.00 annually
for the first three lease years and at the rate of $101,200.00 annually for
the fourth and fifth years, payable in monthly installments on or before the
first day of each month during the term hereof, the first 36 monthly
installments to be in the amount of $8,166.67 per month and the remaining
24 monthly installments to be in the amount of $8,433.33 per month. All
payments of rent shall be made to Lessor at his address stated above, or at
such other place as he may direct in writing from time to time. If any
installment of rent or other sum due from Lessee is not received by Lessor
within five (5) days after such amount is due, Lessee shall pay Lessor a
late charge equal to 10% of such overdue amount. The parties agree that
such late charge represents a fair and reasonable estimate of the cost
Lessor will incur by reason of late payment by Lessee. Lessor's
acceptance of such late charge shall in no event constitute a waiver of
Lessee's default with respect to such overdue amount, or prevent Lessor
from exercising any other right or remedy granted hereunder.
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4. USE OF PREMISES. The leased premises shall be used for the
manufacture and distribution of equipment and machinery for the casting of
eyeglass lenses and kindred items, and for training in the use of said
equipment and machinery, and not otherwise. So long as Lessee shall pay
the rent and perform all of the terms of this lease, Lessee shall peaceably
and quietly enjoy the leased premises without any disturbance from Lessor or
any person claiming through Lessor.
5. SURRENDER OF PREMISES. Lessee shall deliver and surrender to
Lessor, possession of the leased premises upon expiration of this lease or
its earlier termination, or at the expiration of any extension or renewal
hereof, broom clean and in as good condition and repair as at the
commencement of the term, or as may have been put by Lessor or Lessee during
the term, ordinary wear and tear and insured damage by fire or the elements
beyond Lessee's control excepted. Lessee shall not, at any time, cause,
permit or suffer any waste, nor erect or permit to be erected or conducted on
the premises any nuisance.
6. DAMAGE OR DESTRUCTION TO PREMISES. In case the premises herein
leased or any part thereof shall, during the term of this lease, be
destroyed or damaged by fire or other casualty, so that the same shall
thereby be rendered unfit for habitation or for the purpose designed, which is
to be determined by the Lessor, then and in that event the Lessor may, at
any time within five (5) days after the happening of such casualty, by
notice in writing to the Lessee or those having estate in the premises,
determine (or cancel) this lease, and unless it be so determined, the rent
hereinbefore stipulated to be paid or a just and proportional part thereof
shall be suspended or abated until the premises shall have been by the Lessor
rebuilt or repaired and put in proper condition for use and habitation, and
the rent shall thereupon recommence immediately after said rebuilding or
repairing shall have been completed, but in any event the rent shall be paid
up to the day of said fire or casualty.
7. ASSIGNMENT AND SUBLEASING. The premises shall not be underlet, or
the term, in whole or in part, assigned, transferred or set over by the act
of the Lessee, by process or operation of law or in any other manner
whatsoever, without the prior written consent of the Lessor, which consent
shall not be unreasonably withheld, and for a violation of this stipulation,
in addition to the forfeiture provided for herein, the rent shall be doubled
while the default continues.
8. TAXES AND INSURANCE. Lessor shall pay all real estate taxes on the
leased premises. Lessee shall pay all taxes on its contents in the leased
premises. Lessor shall pay for all insurance on the improvements. Lessee
shall not at any time use the premises, or permit them to be used in such a
manner as to increase the rate of insurance thereon. Lessee shall pay, as
additional rent, any increase in insurance cost caused by its use of the
premises, and any increase in real estate taxes and/or insurance premiums in
excess of those paid by Lessor during the first lease year.
9. HOLDING OVER. Should the Lessee continue to occupy the premises
after the expiration of said term or any renewal or extension thereof, or
after a forfeiture incurred, whether with or against the consent of the
Lessor, such tenancy shall be in accordance with the terms of this lease
except that Lessee shall be subject to removal at any time.
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10. RECOVERY OF PREMISES. Should the Lessor at any time rightfully seek
to recover possession of the premises and be obstructed or resisted therein,
and any litigation thereon ensue, the Lessee shall pay and discharge all
costs and attorney fees and expenses that shall arise from enforcing the
covenants of this indenture by Lessor. After service of notice or the
commencement of a suit, or after final judgment for possession of said
premises, the Lessor may receive and collect any rent due, or that may
accrue, and the payment of said rent shall not waive or affect said notice
or said suit or said judgment or judgments.
11. ACCESS BY LANDLORD. The Lessor shall have free access to the
premises herein leased for the purpose of examining or exhibiting same, or
to make any needful repairs or alteration of said premises which said Lessor
may deem necessary.
12. SIGNS. No signs shall be installed, written or painted upon the
leased premises without the prior written consent of Lessor, and when done by
agreement, Lessee shall, if requested by Lessor, remove at Lessee's expense
all such signs, writings and paintings at the expiration or termination of
the term and repair any damage done by any removal. Lessee may use the
existing monument sign, but shall be responsible for its maintenance and
repair. All signs erected by Lessee shall be at Lessee's expense and shall
comply with any applicable zoning or other regulations.
13. SEVERABILITY. If any one or more of the provisions of this lease are
deemed to be unenforceable, the remaining provisions of the lease shall
remain in full force and effect.
14. TIME. Time is of the essence.
15. MAINTENANCE AND REPAIRS. Lessee shall at all times, at Lessee's
cost: maintain the leased premises and all public areas adjoining the leased
premises, clear of any litter or debris; comply with all laws, ordinances
and requirements of all governmental authorities concerning the leased
premises and concerning the use and occupancy thereof; install any utility
services that Lessee may require, and pay for all telephone, gas, electric,
water, sewer and other utility charges, trash removal, janitorial services,
common area maintenance and lawn and landscape mowing and upkeep; pay for and
maintain the leased premises in good condition and in good order and repair at
all times; pay for and maintain all mechanical, electrical and other
equipment and systems, including the heating and air-conditioning systems,
in good operating condition; maintain public liability insurance, protecting
both Lessor (who shall be made an additional named insured) and Lessee in the
amounts of not less than $1,000,000.00/$1,000,000.OO/$1,000,000.00; carry fire
and casualty insurance on all personal property brought upon the premises by
anyone. Lessee shall indemnify and hold harmless Lessor, Manager, and
their respective agents and employees, from and against any and all
liabilities, damages, claims, demands, costs and expenses of every kind
and nature (including reasonable attorneys fees), including those arising
from any injury or damage to any person (including death), property or
business (a) sustained in or about the Premises, (b) resulting from the
negligence or willful act of Lessee, its employees, servants, agents,
invitees, licensees or sub-tenants, or (c) resulting from the failure of
Lessee to perform any obligation under this Lease; provided, however,
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Lessee's obligation under this paragraph shall not apply to injury or damages
resulting from the gross negligence or willful act of Lessor, Manager or
their respective agents or employees. Lessor shall be responsible for all
major repairs, replacement of mechanical systems and building structural
components.
16. IMPROVEMENTS AND ALTERATIONS. Lessee shall not make any structural
change, modification or alteration nor any decoration, without the prior
written consent of Lessor. All fixtures and improvements which may be made
or installed by Lessee shall become the property of Lessor at the termination
of this lease unless Lessor shall request the removal of same, in which event
Lessee shall remove same at Lessee's cost, Lessee to repair any damage caused
thereby
17. STORAGE AND USE. Lessee shall not store or use any combustible or
explosive materials in the leased buildings which may create an unnecessary
hazard or affect the insurance rates on the leased premises. Lessee shall
put, keep, and use the leased premises in full compliance with all federal,
state and local laws, rules and regulations pertaining to the leased
premises, including but not limited to those relating to any hazardous or
toxic substance, material or waste which is or becomes regulated by any
local authority, the State of Kentucky or the United States Government, or
any agency of any of same. Lessee shall indemnify and hold Lessor harmless
from any and all claims, judgments, damages, penalties, fines, costs,
liabilities and attorney fees incurred in connection with any investigation
of site conditions or any clean up, remedial, removal or restoration work
required by any federal, state or local governmental agency or authority,
and losses (including, without limitation, diminution in value or rental
value of the leased premises, sums paid in settlement of claims, attorney
fees, consultants' fees and experts' fees) which Lessor shall incur or
sustain, during or after the expiration of the lease term and any renewals
or extensions thereof, caused by or resulting from any act or omission of
Lessee.
18. WAIVER OF DEFAULT. The waiver of any default committed by Lessee
shall not constitute or be held to be a waiver of any subsequent or other
default.
19. CONDEMNATION. If any part or all of the premises shall be taken
(or acquired) for any public or quasi-public use under power of eminent
domain or like power, or by private purchase in lieu thereof, this lease
shall automatically terminate as to the premises so taken as of the date of
possession by the acquiring authority. In the event of a partial taking,
and the remainder of the premises shall be suitable for occupancy by Lessee,
this lease shall continue as to the remainder and the rent shall be adjusted
on a square foot basis; but if the remainder shall not be suitable for such
occupancy, then this lease shall terminate in its entirety. All awards of
damages for each taking or acquisition shall belong to Lessor, free of any
claim of Lessee.
20. SECURITY DEPOSIT. With the execution of this lease, Lessee has
deposited with Lessor the sum of $8,166.67, which sum shall be retained by
Lessor as security for the faithful performance of obligations and payment of
rents by Lessee, and as security for damage to the property. Lessor may
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exhaust any and all other remedies against Lessee before resorting to said
deposit, but nothing herein contained shall require or be deemed to require
Lessor to do so. If the deposit shall not be utilized for any such purposes,
then same shall be returned to Lessee within twenty (20) days after the
expiration of the term of this lease or any renewal or extension thereof.
Lessor shall not be required to pay any interest on said deposit.
21. DEFAULT. If Lessee shall abandon the premises, permit the rent to
become in arrears or violate any other obligation herein, Lessor may, at his
option, cancel this lease or cancel or modify any portion hereof, or enter
the premises as agent of Lessee, by force or otherwise, without being liable
in any way therefor, and relet the premises with or without any furniture or
equipment that may be therein, as agent of Lessee, at such price and upon
such terms, and for such duration of time, as Lessor may determine, and
receive the rent therefor, applying same first to the expenses of retaking
and reletting (including any court costs, attorneys fees and broker's or
realtor's fees) and then to the payment of the rent due hereunder, and if the
rental realized by Lessor shall be less than the expenses of retaking and
reletting and the rent herein provided, Lessee shall pay any deficiency. If
Lessor cancels lease, then Lessee shall be liable for damages for breaching
this agreement for the difference between the rental provided for the canceled
portion of the term and the amount of rent actually received by Lessor during
that period of time, plus all expenses, costs and attorney fees which may be
incurred by Lessor. Any default by Lessee shall automatically cancel and
extinguish all rights of Lessee under paragraphs 23 and 24 hereof.
22. ENTIRE AGREEMENT. Lessee acknowledges that Lessor has made no
representations, agreements, or inducements whatsoever except as may be set
forth in this instrument contains the entire agreement between the parties.
All prior agreements and understandings are superseded by this instrument.
This instrument shall be construed and governed by the laws of the
Commonwealth of Kentucky.
23. OPTION TO EXTEND LEASE. Lessee may extend this lease upon the
expiration of its initial term, provided that this lease is then in full
force and effect and Lessee has at all times fully performed all of its terms
and conditions. The extended term shall be for five (5) years, commencing
on May 1, 2000, and shall be upon the same terms and conditions as the
initial term, except that rent during the extension term, in addition to any
increases in taxes and/or insurance, shall be as follows: the rent for the
first year of the extension term shall be $101,200.00, and the rent for each
year thereafter shall be increased by an amount equal to the increase of each
prior year in the Consumer Price Index, United States City Average, All
Urban Consumers, of the Bureau of Labor Statistics of the United States
Department of Labor. If publication of said index is discontinued, the
parties shall substitute the most closely related Index published by any
agency of the United States Government. Lessee shall exercise the option for
such extended term by delivering written notice thereof to Lessor at least
six (6) months or more prior to the expiration of the initial term.
24. PURCHASE OPTION. Lessee shall have the option during the first
lease year to purchase the leased premises, provided that the lease is then
in full force and effect and that Lessee has at all times fully complied with
all terms and conditions herein. The purchase price shall be $950,000.00,
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payable at the closing in cash or in immediately available funds. Lessor
shall convey title by a deed of General Warranty, free and clear of
encumbrances but subject to any easements, restrictions and stipulations of
record affecting the property, zoning laws and regulations and taxes which
may be a lien against the property but which are not due and payable at the
time of closing. All taxes for the year of closing shall be prorated
between the parties on a calendar year basis. If Lessee elects to exercise
such option, it shall deliver written notice thereof to Lessor and the
closing shall take place within ninety (90) days thereafter.
25. BROKER'S COMMISSION. Lessor and Lessee agree, represent and
acknowledge that Lane Consultants and Harry K. Moore Company are the only
brokers with whom they have dealt in connection with the leased premises.
Lessor shall be responsible only for the payment of all brokerage commissions
in connection with the original term of this lease and in connection with any
sale pursuant to paragraph 24 hereof.
26. MISCELLANEOUS
26.1 The captions of this lease are for convenience only, and are not
a part of the lease, and do not in any way limit or amplify its terms and
provisions.
26.2 The provisions of this lease shall be binding on and inure to the
benefit of the parties, their legal representatives, successors and
permitted assigns.
26.3 This lease may not be changed orally, but only by an agreement
in writing and signed by the party against whom enforcement of any waiver,
change, modification or discharge is sought.
26.4 If any provision of this lease shall be declared invalid or
unenforceable, the remainder of this lease shall continue in full force and
effect.
26.5 This lease expresses the mutual intent of the parties, and no
presumption or burden of proof shall arise favoring or disfavoring either
party by virtue of the authorship of any of the provisions herein.
IN TESTIMONY WHEREOF, witness the signatures of the parties hereto,
duly authorized thereunto, this 31st day of May, 1995.
/s/ WILLIAM B. BELLIS, SR.
WILLIAM S. BELLIS, SR, Lessor
RAPID CAST, INC. - Lessee
By /s/ Larry Joel
Title: President - Chairman
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GUARANTY
To induce William B. Bellis, Sr., as Lessor, to enter into the
foregoing Lease, to which this Guaranty is attached, and in consideration
thereof, Larry Joel, O.D. ("Guarantor"), a resident of the State of
Kentucky, whose address is 4510 Robards Lane, Louisville, Kentucky, 40218,
guarantees the punctual payment and prompt performance of any and all
indebtedness and obligations of any kind of Lessee under the foregoing Lease,
together with interest thereon and all attorneys fees, costs and expenses of
collection or other enforcement of the provisions of this Lease incurred by
Lessor. Guarantor hereby expressly waives notice of any default by Lessee
under the foregoing Lease. Guarantor shall remain bound under this Guaranty
notwithstanding any extension of time of performance to, the granting of any
other indulgence to, or any other modification including any increase, of any
obligation of Lessee, and the acceptance, alteration or release of any
security. This is a continuing, indivisible guarantee by Guarantor of every
debt and obligation of Lessee under the foregoing Lease, whenever incurred.
This Guaranty shall apply to any renewal or extension of the foregoing Lease.
This Guaranty shall be directly enforceable against Guarantor without
resorting to any party otherwise liable and without exhausting any and all
remedies against them. Any litigation concerning this Guaranty shall only
be brought in the State of Kentucky, and Guarantor hereby appoints the
Secretary of State of Kentucky as a process agent regarding any such
litigation. Provided, however, that in the event Rapid Cast, Inc. Is able
to institute a public stock offering that is successful in raising a minimum
of $5,000,000, in capital or its retained earnings exceed $5,000,000, then
upon the happening of said event, this guaranty shall become void and of no
further effect. Rapid Cast, Inc. shall certify to Lessor the occurrence of
either of the above and shall provide such documentation as Lessor may require
to verify the occurrence.
IN TESTIMONY WHEREOF, witness the signature of the Guarantor by its duly
authorized representative, this 31st day of May, 1995.
/s/ Larry Joel
Larry Joel, O.D.
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